Leaving Your Pipe Out Where Police Can See It May Get You a Drug Paraphernalia Charge

I can’t stress this enough, if you’re going to have cops around, please hide anything that even ‘looks’ like it could be trouble–otherwise you’re going to be in trouble. Of course, not everyone follows the advice of criminal defense attorneys, as evidenced by the recent case of M.L. v. State, 2010 WL 4359940 (3rd DCA 2010) (as you may already know, cases that involve juvenile defendants are abbreviated, thus the “M.L.” , rather than an actual name…).

In M.L.’s case, he was sleeping next to his red bag when the police were looking around on an unrelated matter. Next to M.L.’s red bag was a multi-colored pipe, the pipe was more out of the bag than in, but within arm’s reach of M.L. When the officer picked up the pipe, M.L. exclaimed that “it’s my pipe”. As we’ve discussed before, this type of honesty can only lead to one thing–handcuffs. M.L. was arrested for Possession of Drug Paraphernalia, and eventually convicted.

The burning question of the day is, what right did the officer have to take M.L.’s pipe and examine it? Fortunately, M.L.’s attorney asked this very same question of the appeals court. The appellate court relied on what is known as the “plain view” doctrine, which sets forth three conditions that allow something in plain view to be seized by the police. First, the police officer must be in a place where he has a right to be. Second, the officer must inadvertently come upon the object which is openly visible. And third, it must be immediately apparent to the officer that the object is evidence of a crime.
Good news: the appellate court overturned M.L.’s conviction. Gone, thrown out. Why? Because the State failed to prove the third element of the plain view doctrine–‘immediately apparent that the object is evidence of a crime’. The court held that “the mere observation of a portion of a pipe, without more, cannot constitute probable cause because it could be a tobacco pipe or other lawful object”. The court cited the case of Walker v. State, 514 So.2d 1149, 1151 (Fla. 2d DCA 1987), another pipe in plain view case, standing for the notion that “we do not find that the pipe alone could constitute probable cause to arrest for possession of paraphernalia. Because pipes are used to smoke materials other than drugs, they are not contraband per se”. This is good news for you tobacco pipe smokers here in Orlando, assuming you do smoke tobacco in those pipes.